Chronically Ill Employee Fails in COVID-Related Claims
A chronically ill employee who refused to return to work due to COVID-19, has failed in his claims of health and safety detriment and dismissal.
In the case of Miles v Driver and Vehicle Standards Agency, Mr Miles was a driving test examiner who suffered from chronic kidney disease. He was clinically vulnerable for the purposes of COVID-19. In March 2020 all but essential driving tests stopped due to the pandemic. In July 2020, Mr Miles was called back to work in order to resume testing. Colleagues who were clinically extremely vulnerable were not required to return.
The DVSA implemented several adjustments in order to support Mr Miles in his return to work. Mr Miles nevertheless refused to return and his pay was stopped. He resigned and brought various claims, including for health and safety detriment and dismissal.
The Tribunal rejected the claims, holding that Mr Miles unreasonably believed that had he returned to work, he would be in serious and imminent danger. Mr Miles appealed to the EAT.
EAT Outcome
The EAT upheld the Tribunal's dismissal of Mr Miles' claims. It examined the Tribunal's reasoning for its decision about the reasonableness of Mr Miles' belief. In order to reach its decision the Tribunal had taken into account the Government guidance and legislation in place at the time, as well as the guidance issued by Public Health England. It also took into account the steps the DVSA had taken to mitigate the risks posed to Mr Miles at work. Taking all these factors into account, the Tribunal was entitled to find that Mr Miles was unreasonable in his fixed view that he would only be safe by maintaining a social distance of two metres at all times.
What Can Employers Learn from This Decision?
This decision acts as reminder of the Tribunal's approach to assessing whether a particular belief was reasonably held. Whilst a chronic health condition and the fact of a pandemic might at first appear to suggest a reasonable belief in serious and imminent danger, in reality the Tribunal's analysis will be more nuanced than this. Whilst the Tribunal did consider evidence that supported Mr Miles' case, it weighed this against other evidence in reaching its overall determination, which it was entitled to do.